In T 214/01the board decided to admit documents, which had been filed by the opponent on the "final date" within the meaning of R. 71a EPC 1973 in preparation for the oral proceedings before the opposition division. Since the appellant (opponent) in the statement of grounds had questioned the opposition division's choice not to admit all these documents into the proceedings, the board took the opportunity to note that, although Art. 114(2) EPC 1973 gave an opposition division discretion not to consider evidence not submitted in due time, the division was obliged to give reasons for its decision not to consider such evidence if the opponent remained of the view that it was relevant. It was not acceptable that (relevant) pieces of evidence filed outside the opposition period were not mentioned at all in the decision under appeal.

Already, in T 705/90 the board pointed out that any decision to disregard late-filed documents had to be accompanied by a statement of reasons. It was not enough simply to point out that the documents were late.

In T 2097/10, the board found that the brief statement of reasons given by the opposition division - to the effect that documents D18 and D19 were relevant and not especially voluminous ­ was sufficient. Indeed, it was not apparent from the minutes that the patentee's representative had been denied an opportunity to comment on those documents, or that he had asked for more time to prepare such comments but his request had been refused.

An opposition division has a discretionary power under Art. 114 (2) EPC 1973 to disregard evidence which has not been submitted in due time. This power has to be exercised reasonably after hearing the parties, including in oral proceedings if requested (T 281/00).